Is a type of legal essay or exam set in French academia. Its name translates literally to "decision commentary" but translates more idiomatically in my view as something like "case study." Basically, it is what it sounds like. You are given a French legal decision in your subject area, and your job is to comment on it.
This being France, of course, it is not that simple. Rather, you have to do it in a certain convoluted way, notwithstanding that French legal decisions, especially of the higher Courts, require considerable reflection and are themselves like written puzzle boxes themselves. Probably so that perfidious non-French people can't understand it and/or so les rosbifs, les boches, &c. can't work out what they're up to. In fact, so convoluted and full of artificial difficulty is the commentaire that at the start of term, for new students, French law faculties lay on special classes for foreign students and new students that teaches them the approved method of writing a commentaire, to say nothing of dissertation, cas pratique, et note de synthése. The approved method is as follows:
- An introduction, which begins with a catchy hook phrase that isn't a quote, then proceeds to explore the background of the decision, the arguments put forward by the parties, whether the ground put forwards was allowed or refused, and for what reason. Then it goes on to discern what the problematic aspects of the decision are, and then announces THE PLAN.
- The meat of the piece in two by two parts shaped like a funnel. No, really, that's how it was first explained to me up at the Sorbonne. You have a first half, designated with a bit Roman numeral (I), and a second half, designated, (II). Each of these have a part (A) and a part (B). You are not allowed to have more than two by two parts. Nor are you allowed to go into a third level of segmentation. You are also not allowed to have (I) be pro and (II) be contra. But you must stick to an Aristotelian syllogism of major premise, minor premise, conclusion at all times (French legal academia has a huge bone-on for these.) The reason it's shaped like a funnel is that you start in (I)(A) with a large open-ended exploration of the background, explore the major and minor premises in (I)(B) and (II)(A) respectively, and then come to your point in (II)(B). Or something like that.
- Both parts and both parts of those parts must mirror each other in some form, because there's two sides to every legal argument, but no for and against like I've said. Their lengths must mirror each other and so must the lengths of the titles of each part. I once asked a tutor why my intitulés were not considered up to scratch and he said that maybe I should make them rhyme.
- No conclusion. Commentaire is a journey, not a destination. Besides, your appreciation of the sens, valeur, et portée (meaning, value, and reach) of the decision should be peppered throughout the text.
- ABSOLUTELY NOTHING WHATSOEVER ABOUT THE POLICY IMPLICATIONS OF THE DECISION. What are you, an Anglo-Saxon?!
- Oh, and unless it's being done as a term essay, you have to write this in 3 hours in a cramped lecture hall while the invigilators sellotape each other to chairs and generally fartarse around and anarchists try to break into the hall and press-gang you all into manning the barricades.
The reason this is artificially difficult unless you're French is, of course, because the French education system teaches its students to think in this manner, to see things in isolation, and refine it to a point. This is why the French invented semaphore windmills for long distance communication in the late 19th century. Then a perfidious Englander came along and invented the telegraph.
Okay, maybe I should act a bit more Gallic and turn to an eminent academic for the reasons why French legal writing is always in this manner. Such a person is, after all, more qualified to expound on why this is done than a mere rosbif. By this I mean your friend and mine Prof. Eva Steiner and her 2003 book "French Legal Method" which has a whole chapter at the back on French legal education. She writes that "new students often sneer" when confronted with this sort of thing as it is seen as "schoolish" but "they soon change their tune" when they find out that not only is this the manner in which eminent French legal academics write their articles, treatises, and books, but also because "failure to adopt the proper method leads to poor marks." This is a very wordy way of slowly shrugging the shoulders and saying, "c'est comme ca."
Oh, and there's an added shotgun blast of brainfuck about this. Have you seen a French legal decision? I have. I've seen quite a few. While in the Anglo Saxon world a legal decision is lengthy, and spells out the reasoning for the decision in full and explains how that conclusion was arrived at, a French legal decision is short and like a written puzzle box. For comparison, here is a decision of the Court of Appeal in England in relation to the issue of whether plaster constitutes actionable disrepair. Here is the French Conseil d'État in the case of Commune de Morsang-sur-Orge in which a panel of 9 judges found that the Mayor of that august metropolis was within his rights to ban dwarf-throwing in his town because it was an indignity to the dwarves even though they were entirely consenting to it. You can see that the French decision is short, stumpy, and adheres rigidly to the Aristotelian syllogism I referred to beforehand. Yet you are required to unpick the decision to get at what it really means.
I mean, the French were big on bringing in the idea that justice must not only be done, but also be seen to be done, what's wrong with a narrative explanation of everything, because in 200 years' time confused avocats might not know that dwarf throwing was a thing. The whole point of holding hearings and trials in public is that people can see what is going on and there's a level of openness.
Aha! Prof. Steiner to the rescue! According to French Legal Method (ibid.) the whole reason for all this is to "parade the majesty of the law in front of the citizenry." That's a very wordy and roundabout way of saying, des boulots pour les garcons.
Anyhow. Going back to commentaire. So, you have three hours to unpick the decision, then write about it in a completely logical two by two structure, and not come to a conclusion because you're just a student bum and you only can come to conclusions if you're an eminent academic. It's all very hidebound, if you ask me. However, I will say one thing that my training at the Sorbonne in commentaire helped me to do, and that is one thing and one thing only
I recently was looking for legal jobs and one part of the interview process for these was to do a short presentation on a decision or legislative provision and what it means for the organisation I hoped to work for. What I did was to structure them according to the above mentioned two by two structure, the plan binaire as it's known, and fit in my thoughts according to that. It worked a treat. I didn't get any of the jobs where I had to do this, but my presentations I thought were pretty spiffy. Pity employers didn't think so - when I applied for an in house job with a certain Housing Association in the north west, I was told that although I was clearly the technically most adroit candidate, my presentation, on a new law on anti social behaviour was a bit "bizarre" and "off beam" and "the successful candidate did a splendid presentation."
So, yeah. Thanks, the Sorbonne. Because of your weirdly artificially difficult exams, I am now ever so slightly less shit at PowerPoint than I used to be.
(Incidentally, you may also have noted a number of nodes I've done here on E2 in the past which have had a I A B II A B structure to them. There's several, but I'm not going to tell you which ones they are. This writeup, clearly, is not one of them, because fuck you Faculté de Droit.)